Chapter 14: Classroom Activity

Student Rights – The Breakthrough

The purpose of this lesson is to give students a close look at the flag salute cases of the 1940s in which a US Supreme Court reversal of its earlier opinion led to the first acknowledgement in the high court that the Constitution did apply to students in public schools.  The lesson, which incorporates role plays, will give them a feel for the climate of the times, how the court system works, the arguments used by both sides and the reasons for the US Supreme Court’s landmark reversal of opinion.

I. Gobitis v. Minersville School District

THE INCIDENT
On November 6, 1935, a fifth and a seventh grader, William and Lillian Gobitis, were expelled with a classmate from their school in Minersville , Pennsylvania .  School superintendent Charles Roudabush ordered them expelled for an act of “insubordination” – refusing to salute the flag as required by the Minersville school board, but instead standing in silence.

BACKGROUND
The children were Jehovah’s Witnesses who refused to salute the flag because they held that God had forbidden them from bowing down before graven images.  Jehovah’s Witnesses were very unpopular in the United States because of their opposition to the practices of other Christian denominations and what was seen as their lack of patriotism.

Jehovah’s Witnesses were by no means the only people who objected to the flag salute.  Ever since the Pledge of Allegiance was first introduced in 1892 as part of the celebration of the 400^th anniversary of Columbus ’ “discovery” of the “ New World ,” there were protests that a compulsory flag salute was an insult to freedom of thought and to love of country, as George Washington himself had believed.

But despite this, states began to make the Pledge of Allegiance a compulsory part of the school day, especially during World War I when schools were encouraged to promote patriotism.  By 1935, when fears of another war were being stoked by the rise of Nazi Germany, forty states had laws making the flag salute compulsory in schools.  In that year, Massachusetts passed a law requiring every teacher to have students recite the Pledge at least once a week, or be subjected to a fine.  By the time the Gobitis children were expelled, saluting the flag had become a mandatory badge of patriotism which Jehovah’s Witnesses around the country refused to wear. 

THE CHARACTERS
William and Lillian Gobitis and Edmund Wasliewski, the expelled Jehovah’s Witnesses, displayed considerable courage when they refused to go along with the school’s requirement that all students salute the flag.  Their classmates considered them disloyal.  They were unable to continue their studies at home after being expelled because of a state law which required them to be in a state-approved school until seventeen years of age.  So for some time they had to travel to a private school which was far from their home but did not require a flag salute.

The father of William and Lillian, Walter Gobitis, was the leading Jehovah’s Witness in that part of Pennsylvania .  Born into a Roman Catholic family, he had grown up in the town of Minersville and owned the town food store.  He was known as a very generous man, who gave townspeople credit during the years of the 1930s Great Depression.  This was one reason why the townspeople did not show much hostility to his family, although there were calls for a boycott of Gobitis’ store.  Another reason was that Walter Gobitis went from door to door after his children were expelled, and tried to convince his neighbors that they meant no disrespect to the flag, but were simply determined to obey the word of Jehovah.

The school superintendent Charles E. Roudabush had directed the school system for over twenty years.  He was known as a pillar of the community and a firm believer in the virtues of discipline and patriotism.

The attorney hired by the Gobitis family was Olin R. Moyle.  Or perhaps it would be more accurate to say that Moyle “hired” the Gobitis family.  A Jehovah’s Witness who practiced law in Brooklyn , Moyle had been trying for years to get a favorable judgment in a flag salute case.  He had no success in state courts and decided to bring a case in a federal court.  To do so, he had to convince a federal court judge that a constitutional issue was at stake in the flag salute expulsions.  He surveyed the country for a federal judge whom he thought might be inclined to give serious consideration to the constitutional issues bound up in flag salute cases and then looked for clients in that judge’s district – and found the Gobitis children.

Albert Branson Maris was the federal judge Moyle selected.  A Quaker, he sat on the US District Court for the Eastern District of Pennsylvania.  He had just been appointed to the bench by President Roosevelt so no one know much about his legal opinions.  But Moyle thought that his religion might predispose him to take seriously issues involving “minority” religious groups.

THE FIRST TRIAL
On May 3, 1937, nearly two years after his children were expelled from school, Walter Gobitis brought a case against Superintendent Roudabush and the Minersville School Board.  The “bill of complaint” filed in the US District Court for the Eastern District of Pennsylvania argued that the school district violated the students’ Due Process rights under the Fourteenth Amendment since their rights were taken away without any legal proceedings.  Expelling the children represented a “cruel and unusual punishment” under the circumstances and was hence a violation of their Eighth Amendment rights.  The regulation also collided with the Gobitis’ children’s religious beliefs and freedom of expression, and violated their First Amendment rights.  Furthermore, the Gobitis family had incurred heavy private school expenses because the children were deprived of public schooling.

The attorneys for the School Board tried to persuade Judge Maris not to hear the case on the grounds that it did not represent a violation of the plaintiffs’ constitutional rights.  After deliberating for seven months, Judge Maris agreed to hear the case, arguing that it did concern the constitutional issues of freedom of religion and speech.  Having decided that the federal court did have jurisdiction in a matter involving a local school district, Judge Maris ordered the trial to begin.

By the time it got underway on February 15, 1938, Europe was almost at war and the spirit of patriotism was being vigorously fanned on both sides of the Atlantic .  Jehovah’s Witnesses were accused of being traitors and “Nazi spies” because they refused to salute the flag.

ACTIVITY: A ROLE PLAY OF GOBITIS v. MINERSVILLE
The class should take on the roles of the participants in this first trial.  Some should play the plaintiffs (the Gobitis family), and others take on the roles of Attorney Moyle, the School Board members, Superintendent Roundabush and their attorneys, and Judge Maris.  There was no jury.

The class should be divided into groups and decide what arguments to present at the trial.  Questions to consider:

1. What arguments would the School Board use to defend its flag salute regulations?
2. How would Attorney Moyle and the plaintiffs present the constitutional issues which they said were at stake?
3. What sort of impression would each side try to make?
4. How would Judge Maris decide?

FOLLOW UP
How did the role play match up with the actual trial?  The Gobitis family argued that they loved their country and were good citizens, but their religious beliefs would not allow them to salute the flag.  They called as a witness a prominent Jehovah’s Witness who claimed the flag salute was a violation of the Bible and they were being true to their religion.

The School Board attorneys argued that the flag salute requirement was not in any way a religious exercise, and had nothing to do with anyone’s religion.  The sole witness on their side was Superintendent Roudabush, who claimed that it was demoralizing to the many when a few students refused to salute the flag.  All students, he said, should show the proper reverence to the country and the flag.  He felt the Gobitis children had been indoctrinated, and that their parents held sincere but “perverted” religious views.

Judge Maris waited four months before delivering his verdict in favor of the Gobitis family.  He claimed they had been deprived of their liberty without the due process of law required by the Fourteenth Amendment.  The judge also ordered the Minersville school to take back the Gobitis children – but by the time his verdict was announced it was the summer and school was not in session.

II. Minersville School District v. Gobitis

The name that goes first in a court case is the party that brought the suit.  Because the School Board appealed Judge Maris’ ruling to the US Court of Appeals for the Third Circuit, the case is now called Minersville v. Gobitis.  The Board’s lawyers tried to convince a panel of three appeals court judges that the public good would be harmed if children were allowed to refuse to salute the flag.  But all three judges backed Judge Maris.  One of them, Judge Clark who wrote the opinion, argued against blind “flag worship” and in favor of respecting the conscientious opinions of students.

In spite of these two rebuffs, the Minersville School Board and Superintendent Roudabush decided to go on and pursue their appeal to the highest court in the land.  The Association of Patriotic Societies of Schuykill County agreed to pay all expenses.

III. The Supreme Court Hears Minersville School District v. Gobitis

THE BACKGROUND
Years had gone by.  The Gobitis children were young adults and out of school.  War seemed more likely than ever and the Jehovah’s Witnesses more likely than ever to be accused of being “Nazi spies” by the time the Supreme Court agreed to hear oral arguments n the case on April 25, 1940. 

The Supreme Court  had already considered briefs from both sides.  The Brief of Petitioners (for the School Board) claimed that the flag salute regulation was lawfully adopted and the school had the power and right to expel the children.  The brief denied that school officials had violated either the Constitution or the religious beliefs of the children.  

For the Gobitises, the Respondents Brief was written not by Attorney Moyle – who had a disagreement with the Jehovah’s Witnesses at this time and was expelled from their ranks – but by the head of the Witnesses, Joseph Franklin Rutherford who was also an attorney.  Much of this brief was couched in religious rhetoric and contained numerous Biblical references.  It detailed the persecution suffered by the Jehovah’s Witnesses, but neglected to pursue the constitutional issues.

The court also received two Friend of the Court (amici curiae) briefs – one from the American Bar Association’s Committee on the Bill of Rights and the other from the American Civil Liberties Union.  These made the constitutional arguments which the Respondents Brief had overlooked.

ADDITIONAL CHARACTERS
Chief Justice Charles Evans Hughes had been appointed a Supreme Court justice by President Taft in 1910.  He resigned six years later to run for president himself on the Republican ticket, losing the election to Woodrow Wilson.  He later served as Secretary of State and finally in 1930 was made Chief Justice of the Supreme Court by President Herbert Hoover.  He was Chief Justice during President Roosevelt’s New Deal and led the Court in blocking much congressional legislation as unconstitutional. 

The Supreme Court was severely criticized for its actions and only recovered its prestige after President Roosevelt tried to bend it to his will in 1936 by doubling the number of justices.  Roosevelt’s attempt at “court packing” failed, but it did succeed in convincing certain of the justices, including Hughes, of the need to cooperate with the president.

After 1936, Chief Justice Hughes voted more frequently with the handful of liberal justices on the bench, who were led by Justice Harlan Stone.  By 1940, President Roosevelt had appointed additional liberals to the court, including Hugo Black and William Douglas.  By that time, however, other members of the judiciary feared that the Supreme Court had become too “active” in support of the New Deal, and wanted to return to the practice of “judicial restraint.”  The court should, they believed, only intervene in cases were constitutional abuses were blatant.  

Another Roosevelt appointee was Felix Frankfurter, a former Harvard Law School professor who gained a reputation for constantly interrupting attorneys who were presenting arguments to the court.  

Joseph Franklin Rutherford, called “Judge Rutherford” although he wasn’t one, was the well known religious leader of the Jehovah’s Witnesses who spread the word through the sect’s “Watch Tower” publications and through weekly radio broadcasts.  He was as effective in his use of “modern” forms of communication as many evangelical ministers who use the electronic media are today.  But many people in the country thought he was a fanatic.  They feared the Witnesses.  Although he was a lawyer, he spoke before the court as he wrote – in religious terms. 

ACTIVITY:  MOOT COURT
A Moot Court simulates legal issues in an appeals court setting.  This section will help students become familiar with how the Supreme Court functions. 

1. The class should be divided into three groups.  Nine students should represent the Supreme Court justices (one should be Chief Justice Hughes, and one Felix Frankfurter, who frequently interrupted oral arguments); one group act as the Petitioners (school officials) and one group the Respondents (Gobitis family and attorney Joseph Rutherford). 
2. These groups should be given the opportunity – either during class time or at home – to develop their sides of the argument based on their knowledge of the two preceding cases. 
3. The Moot Court should be called to order with the Supreme Court justices sitting at one end of the classroom.  The Chief Justice should ask the Petitioner to present his or her arguments first, followed by the Respondent.  The justices should frequently interrupt with questions.
4. After all the arguments have been heard, the justices can discuss the case aloud among themselves and then announce their decision. 

FOLLOW UP
No record exists of the oral testimony before the Supreme Court during this period, so we have no way of knowing what exactly transpired during the hearing.  On June 3, 1940, the justices voted 8-1 to reverse both lower court rulings and support the School Board.  Nearly five years after they were expelled from school, the Gobitis children lost their final case. You can read the decision at:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=310&invol=586

In the justices’ conference on the case, Chief Justice Hughes argued forcefully for a reversal of the lower court rulings, saying the Witnesses’ constitutional rights had not been violated and that the state – not federal government - had broad rights over education.  He claimed that if the court did intervene against the school district, it would be accused of “meddling” in legislative affairs.

Justice Frankfurter wrote the court’s decision, which made an argument for “judicial restraint” – the court should not intervene outside its proper sphere and oppose the wishes of the people of Pennsylvania.  The issue was one of educational policy, not of the Constitution.  The court had to consider what to do when religious beliefs kept other people from “doing what society thinks necessary for the promotion of some great common end.”  The court had no business getting in the way of educational policy – it should not be a “school  board for the country.”

Of more long-lasting significance than the majority opinion penned by Justice Frankfurter was the dissenting opinion written by the sole dissenter, Justice Harlan Stone.  Stone argued that what was at stake was freedom of speech and religion and that the court was ignoring fundamental  constitutional violations:

“The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs.  It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to that justice and moderation without which no free government can exist.” 

Justice Stone’s dissent was to pave the way for a surprising reversal of the majority opinion a mere three years later.

AFTERMATH
The Supreme Court decision in Minersville School District v. Gobitis triggered a spasm of violence against Jehovah’s Witnesses around the country.  Viewed as traitors and Nazi sympathizers, they were beaten until they kissed the flag, shot, tarred and feathered and maimed. 

The orgy of “patriotism” peaked with America’s entry into the war after Pearl Harbor was bombed in December 1941.  While flag sales doubled, the Witnesses lost their jobs and were arrested by the hundreds.  There were over 300 mob attacks directed against the Witnesses in the early 1940s, and the Witnesses complained that in many of these cases the police stood by and refused to intervene.

No doubt the Supreme Court justices felt uneasy at the public reaction to their decision.  They may also have had second thoughts because of a series of critical editorials which appeared in papers like the Christian Science Monitor and in the law journals.  The decision was attacked as a blow against religious freedom and Harlan Stone’s dissent praised. 

Soon Harlan Stone replaced Charles Evans Hughes as Chief Justice of the Supreme Court.  He continued to support the religious freedom of Jehovah’s Witnesses whenever he had the opportunity to do so. 

Then, two years after the Gobitis judgment, three justices –Frank Murphy, Hugo Black and William Douglas – took the unusual step of publicly stating that Gobitis had been “wrongly decided.”  It was clearly just a matter of time before the wrong would be put right.

IV.   West Virginia Board of Education v. Barnette

The State Board of Education in West Virginia adopted a compulsory flag salute regulation backed by an old state law in early 1942.  A large number of Witness children were immediately expelled when they refused to salute the flag.   The Witnesses saw this as the opportunity to get a case heard by the Supreme Court and reverse Gobitis.

THE BACKGROUND
A local West Virginian lawyer, Horace Meldahl, who was a member of both the American Legion and the American Civil Liberties Union, had as clients several children who had been expelled and whose parents were being sued for keeping the children out of school.  He chose the Barnette family as the plaintiffs in what became a class action suit – a suit which represented everyone in the state who was in the same position as the expelled Barnette children and their parents. 

Since the Barnette suit challenged the constitutionality of the state law on which the Board of Education flag salute regulation was based,  it was heard by a special panel of three federal court judges in Charleston, convened for just this one case.  The head of the panel was Judge John J. Parker, a circuit judge who had been turned down by the Senate when he was nominated for the Supreme Court by President Hoover.  He was considered too conservative for the court.

But conservative or not, Judge Parker and the other two federal judges threw out the Supreme Court decision of Minersville v. Gobitis.  They said it had been “impaired as an authority” and that important constitutional issues were at stake.  Judge Parker ordered all West Virginia schools to take back the Witness children and not force them to salute the flag.

THE SUPREME COURT REVERSES GOBITIS
The West Virginia School Board appealed this decision to the US Supreme Court, which heard the Barnette case early in 1943.   By a vote of 6-3, the justices upheld the decision of the federal panel and reversed their Gobitis ruling.   On Flag Day, June 14, 1943, they announced that a compulsory flag salute was a violation of the Constitution and the Bill of Rights, and that the First Amendment did apply to school children. 

In the words of Justice Robert H. Jackson who wrote the majority opinion:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein….We think the actions of the local authorities in compelling the flag salute…transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

For the first time the Supreme Court acknowledged that the Constitution  did reach into the public schools and that students did possess certain constitutional rights and protections.  It would take the Supreme Court another 25 years to begin to spell out what these should – and should not - be. 

To read the decision: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=319&invol=624

QUESTIONS FOR STUDENTS

After students read the entire decision they should seek answers to these questions:

1. Why did the majority shift away from “judicial restraint” in reaching their decision?
2. Why does Justice Jackson think that the Bill of Rights and constitutional freedoms must apply to young people?
3. What in Justice Jackson’s view is the purpose of the Bill of Rights?
4. What does the majority opinion say about the right to dissent?  Do the students agree with this view?

V.  SALUTING THE FLAG: THE AFTERMATH

Students should be aware that in spite of the Supreme Court opinion stating that students could not be forced to salute the flag in public schools, compulsory flag salutes did not end overnight.  In fact, during the last 60 years, there have been numerous occasions in which students or teachers had to go to court to assert their right not to salute the flag.   Generally, it is not necessary to go to court.  A letter from the ACLU outlining the constitutional position is often enough to get schools to change their practices and uphold the rights of students. 

A Supreme Court ruling is only part of what it takes to change an unconstitutional practice.  Public opinion also plays an important role.  Unless people understand the principles behind the Constitution and Bill of Rights and are willing to abide by them, an individual can pay a very high price for being true to his or her beliefs. 

Consider what happened to Susan Shapiro at her high school in Randolph, Massachusetts.  In September 1984, her homeroom teacher objected when she refused to stand up and say the Pledge.  She had refused the previous year, but the homeroom teacher accepted her reasons for not taking part in the Pledge.

School officials knew that her action was in keeping with the Supreme Court ruling and that she could not be forced to say the Pledge.  But just as the Jehovah’s Witnesses became the target of hatred and aggression for their refusal to salute the flag, so did Susan.  She came under attack from teachers and students who agreed with the homeroom teacher that she should have stood up like everyone else.  Soon she was threatened and subjected to anti-Semitic taunts, and in mid 1985, a bomb exploded on her front lawn.  The kind of intolerance which found the Jehovah’s Witnesses easy prey in the early 1940s had surfaced in Massachusetts some 40 years later. 

QUESTIONS FOR CLASSROOM DISCUSSION

1. Could something like this happen in our school?
2. If you felt strongly about something, would you take an independent stand, even if it meant that you became unpopular?  When would you take such a stand?
3. Should students be doing more to use and extend their constitutional rights?

---

Activity 2:

Creating a School Bill of Rights

After students have learned about how the Bill of Rights applies to school according to US Supreme Court rulings, divide the class into two groups.

One group should write a "School Bill of Rights" reflecting the rights students DO have in school.  The other group should create a "School Bill of Rights" reflecting the inalienable rights they believe students SHOULD have in school. 

 Ask the students to compare the two lists. Are they similar?  How do they differ?  They should brainstorm the pros and cons of each list and then decide whether students already have enough rights in school or should have more.  How can any additional rights be balanced with the educational mission of the school?